R (on the application of XPL Ltd) v Harlow Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lady Justice King,Lord Justice Jackson |
| Judgment Date | 15 April 2016 |
| Neutral Citation | [2016] EWCA Civ 378 |
| Date | 15 April 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/4059 |
[2016] EWCA Civ 378
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR RHODRI PRICE LEWIS Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lady Justice King
and
Lord Justice Lindblom
Case No: C1/2014/4059
Ms Megan Thomas (instructed by Sharpe Pritchard LLP) for the Appellant
Mr Wayne Beglan (instructed by Holmes & Hills LLP) for the Respondent
Hearing date: 10 February 2016
Introduction
This appeal concerns a breach of condition notice served by a local planning authority under section 187A of the Town and Country Planning Act 1990. The notice required the company operating a bus depot to cease the "running of engines" of coaches and buses at the depot outside the hours specified in a condition prohibiting the "repairs or maintenance of vehicles or other industrial or commercial activities (other than the parking of coaches and other vehicles …)". Is it a lawful breach of condition notice?
The appellant, XPL Ltd., is the bus company operating the depot, which is at Plot 17 on the Harlow Business Park, Roydon Road in Harlow. The respondent, Harlow Council, is the local planning authority. XPL appeals, with permission granted by Sullivan L.J., against the order dated 28 November 2014 of Mr Rhodri Price Lewis Q.C., sitting as a deputy judge of the High Court, by which he dismissed XPL's claim for judicial review of the breach of condition notice served on them by the council on 3 June 2014. The notice alleged a breach of a condition 4 on the planning permission granted by the council for the use of the site as a "coach park/depot (sui generis use)" on 6 July 2011. It required XPL to cease the running of engines of coaches and buses outside the hours specified in condition 4. The deputy judge held that the council had not acted unlawfully in serving a breach of condition notice in those terms. XPL says he was wrong to do so.
The issues in the appeal
There are two issues in the appeal. Before he could decide whether the council's breach of condition notice was lawfully served, the deputy judge had to ascertain the meaning of condition 4. We must consider whether his understanding of the condition was correct. That is the first issue. The second is whether the deputy judge was right to conclude that the restriction in the condition, properly understood, bites on the running of coach and bus engines on the site outside the permitted hours. If it does, the breach of condition notice was lawfully served. If it does not, the service of the notice was unlawful. Sullivan L.J. granted permission to appeal on XPL's grounds relating to those two issues. He refused permission on a further ground in which it was contended that the council had fallen into error because when it issued the notice it ignored, as a material consideration, the fact that XPL's buses and coaches "have a necessary warm up time in order to engage the braking system (inter alia)". That ground, he said, added nothing of substance to the principal grounds.
XPL and its depot
XPL provides bus services throughout Harlow and the surrounding area, among them services that take children to and from school. It runs coaches for commuters, including some that travel to London and back. It also hires coaches for private use. It began operating at the depot on Harlow Business Park in 2012. The business park is in an area allocated for employment uses in use classes B1, B2 and B8 in the Replacement Harlow Local Plan. Plot 17 is a site of about half a hectare at its north-eastern end. The nearest dwelling, St Julian's Farmhouse in Roydon Road, is about 40 metres away to the north- east, and there are others nearby. When XPL made their application for planning permission for its use of the site as a coach park and depot, it was vacant.
The application for planning permission for the use of the land as a "coach park/depot" was considered by the council's Development Management Committee on 6 July 2011. In her report to the committee the council's Planning and Building Control Manager explained that planning permission was sought solely for a change of use of the site from its lawful use in use classes B1 and B2 to a sui generis use as a bus and coach depot, that the site would "initially be used to accommodate some 30 to 40 coaches [sic] with associated car parking for drivers (although the application form indicates there could be scope for up to 50)", and that the drawing submitted with the application showing a building at the northern end of the site was "only a concept drawing".
The officer recommended that planning permission be granted. Under the heading "… Impact on amenity", she said the council had "a duty to protect the amenities enjoyed by occupiers of existing buildings from inappropriate development, in terms of overlooking, loss of daylight/sunlight and outlook, but also in terms of noise and disturbance". She referred to Policy BE17 of the local plan, which states:
"Planning permission will be granted if noise sensitive developments are located away from existing sources of noise and potentially noisy developments are located in areas where noise will not be such an important consideration, or adequate provision has been made to mitigate adverse effects of noise likely to be generated or experienced by others."
She acknowledged that "the proposed use, with its associated comings and goings of coaches and drivers' vehicles, would result in a higher level of activity on the site than present, given that [it] is currently vacant". But in her view the proposed use would not be "significantly materially different, in terms of noise and disturbance, from that associated with a general industrial (B2) use, such as the extant permission for a Food Production Factory". The site was on a business park, where such "employment uses are expected to be located". The "operations likely to be carried out from any future building associated with the coach depot, such as repairs, servicing, etc. would fall within the type of operations generally carried out on a motor repair/service site, which falls within a B2 use class". She noted the "views of the residents relating to hours of operations of the use", and therefore suggested that if planning permission were granted "a condition should be attached to the permission to restrict the days/hours of operation in respect to any repair or maintenance of vehicles at the site".
Condition 4
The council's decision notice describes the "Proposal" for which planning permission was being granted as "Use of site as coach park/depot (sui generis use)". Eight conditions were imposed. Condition 4 and the reason given for its being imposed on the planning permission state:
"No repairs or maintenance of vehicles or other industrial or commercial activities (other than the parking of coaches and other vehicles associated with the Coach Park/Depot hereby permitted) shall take place at the site except between the hours of 8.00 am and 6.00 pm on Mondays to Fridays, 8.00 am to 1.00 pm on Saturdays, and not at any time on Sundays or public holidays, unless otherwise agreed in writing with the Local Planning Authority.
REASON: To ensure that any industrial operations associated with the use do not prejudice the amenity of neighbouring residents and to accord with Policy BE17 of the Adopted Replacement Harlow Local Plan, July 2006."
Section 187A of the 1990 Act
Section 187A of the 1990 Act provides:
"(1) This section applies where planning permission for carrying out any development of land has been granted subject to conditions.
(2) The local planning authority may, if any of the conditions is not complied with, serve a notice (in this Act referred to as a "breach of condition notice") on –
(a) any person who is carrying out or has carried out the development; or
(b) any person having control of the land,
requiring him to secure compliance with such of the conditions as are specified in the notice.
…
(5) A breach of condition notice shall specify the steps which the authority consider ought to be taken, or the activities which the authority consider ought to cease, to secure compliance with the conditions specified in the notice.
…
(9) If the person responsible is in breach of the notice he shall be guilty of an offence.
…."
The breach of condition notice
Complaints about noise coming from the site were made by a neighbouring resident in June 2012, and again in August 2013. On the second occasion the complaint was partly about engine noise in the early hours of the morning. Other complaints followed, also about engine noise before 8 a.m.. The council's environmental health officer told the complainant that the noise did not amount to a statutory nuisance. But noise measurements taken in March 2014 showed there was noise coming from the site from about 5.30 a.m., and that it was loud enough to interfere with the sleep of local residents.
On 10 April 2014, after correspondence with XPL in which the council expressed its concern about "the starting up and revving of coach engines" before 8 a.m., the council served a breach of condition notice. The notice alleged a breach of condition 4, and required the cessation of "all commercial and industrial activities at the site (including the operation of the engines of any coaches and buses parked at the site and associated with the Coach Park/Depot) and any maintenance and repair outside the permitted hours specified within condition 4". Further...
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